On Tuesday afternoon, Tom Phelan rose from the defense table in Clark County Superior Court, approached the bench of Judge Gregory Gonzales and gestured for his client to come forward.
His client, a woman in a green blouse with long black hair, came forth. Gonzales asked her if she understood she was waiving her right to a trial. She quietly agreed.
“Be good; take care of business,” Gonzales told Phelan’s client.
Phelan gave the woman a pat on the shoulder before she made her way out of the courtroom. She was facing drug and theft charges, but after agreeing to enter a diversion program, she walked out of the courtroom free.
The interaction was the best deal Phelan, an attorney who serves defendants unable to afford legal representation, could get for his client: keeping her from further jail time and having a record.
Although the United States and Washington constitutions mandate that defendants get a lawyer regardless if they can pay for one, Phelan and other local indigent defense lawyers have begun publicly questioning the viability of how Clark County funds the service.
Recently, attorneys who work these contracts have approached the Clark County Council arguing that the situation is becoming unsustainable, and the county could face a lawsuit if something isn’t done. A group of attorneys appeared Tuesday before the council to call attention to the low pay. They also questioned why the council was considering a request from Clark County Prosecuting Attorney Tony Golik for $550,000 in budget authority for a new computer system.
While the council seemed sympathetic to the defense attorneys and voted down Golik’s request, there are no clear solutions for the county as it continues its ongoing struggle over how to fund and manage indigent defense services.
‘A change needs to occur very soon’
In 1963, the U.S. Supreme Court ruled in its landmark Gideon v. Wainwright case that states are required under the Constitution to provide defense attorneys to individuals charged with a felony but who are too poor to afford legal counsel.
However, the way states and local jurisdictions have followed that order has varied, including in Washington.
According to the most recent report from the Washington Office of Public Defense, a dozen counties have a public defense agency that manages indigent defense, and four have nonprofit groups to offer the services. The rest of the state relies on appointment systems or contracts with private lawyers.
The amount of funding has varied, too. Clark County spends $12.30 per capita on public defense, according to the report. Spokane County, which has a similar population, spends $18.73.
Clark County currently has 37 contracts with more than 50 attorneys (some contracts are shared with attorneys) to provide representation for indigent defendants charged in adult Superior Court, according to numbers provided by Heather Carroll, coordinator for the county’s indigent defense office.
Carroll explained in an email that the contracts pay a flat rate ranging from $800 to $2,250, depending on the severity of the crime. Homicides and “three-strike” cases, in which offenders convicted three times of certain violent and sexual felonies receive mandatory life sentences without the possibility of release, have a different fee structure.
According to Carroll, “These rates came into effect in 2009 and have remained constant to date.”
Indigent defense lawyers in Clark County are increasingly complaining that the lack of a pay raise is untenable.
Shon Bogar, a Vancouver defense attorney who holds a contract, said the adversarial system between the defense and prosecution isn’t fully realized in Clark County — where prosecutors receive benefits, as well as managers and support staff, which indigent defense contractors lack. As a result, he said it’s easy for indigent defense lawyers to exhaust their time and resources.
“That’s how we send innocent people to prison,” he said.
Last year, a county work group consisting of local attorneys recommended the county increase its pay for indigent defense lawyers while also creating an in-house public defender office. The proposal called on the county to spend $803,562 in its next two-year budget cycle to boost pay and another $640,912 to start the public defender office.
With the county facing a structural deficit, where costs, particularly for employees, are rising faster than revenues, the proposal was never enacted. Meanwhile, indigent defense attorneys have written to the council asking that something be done.
In April, Phelan, who served on the work group, wrote to the council stating that “a change needs to occur very soon.” Otherwise, he wrote, indigent defendants could end up with unqualified representation, and the county could be sued.
“As a group, I and many experienced contract attorneys have understandably grown tired of empty promises and are not only feeling unappreciated but overworked and underpaid,” he wrote. “For over a decade, we have listened to promises of pay increases, yet in the next breath, we heard the shopworn phrase of ‘There is no money.'”
Last month, Dustin Richardson, another indigent defense lawyer, notified the county he would be unable to take certain cases without an increase in the fee structure. The county pays a flat fee of $2,250 for a Class A sex offense case. Richardson said a private lawyer would typically charge $50,000 to take these cases. He said the fee structure creates an incentive for attorneys to focus more on higher-paying work than indigent defense contracts.
“I know that I’m not looking to become a wealthy public defense lawyer, but I do want to be treated as a professional lawyer and to be on equal footing as the people trying to put someone in prison,” he said.
But according to Carroll, the number of contracts has stayed steady over the last 10 years, with 35 being in place in 2009 and peaking at 42 in 2015.
Going on the offense
More than a dozen indigent defense lawyers appeared at Tuesday night’s council meeting. The reason for them being there was an item on the council’s agenda to authorize $550,000 in spending for a new case management system for the prosecutor’s office along with $185,000 for annual maintenance fees.
In March 2018, a Washington State Patrol audit found that the case management system used by the prosecutor’s office did not meet internal controls and was out of compliance. Golik told the council the system has been in use since the early 1990s, and his office has tried to work with county IT to continue using it to save money. He said that without a new system, prosecutors couldn’t access FBI files he described as critical to his office’s functioning.
He agreed indigent defense attorneys deserve a raise but said it was a separate issue.
Indigent defense attorneys complained that the council was considering funding for a new computer system for the prosecution while contract rates have remained frozen for so long. Many spoke passionately about how their work was constitutionally mandated but underfunded by the county.
“The right to an attorney is not just a luxury, it’s a necessity,” attorney Therese Lavallee told the council. She mentioned how the council earlier issued a proclamation recognizing the success of the county’s drug court, which she said would not be possible without defense attorneys.
Members of the council criticized Golik for not being more proactive in planning for the replacement of the computer system.
“It’s more than optics, and I think we need to work harder on looking for other sources of money,” Councilor Gary Medvigy said.
The council voted down Golik’s request on a 3-2 vote. Council Chair Eileen Quiring and Councilor Julie Olson voted “yes.” Medvigy and Councilors Temple Lentz and John Blom voted “no.”
Clark County Manager Shawn Henessee said he appreciates the situation indigent defense lawyers are facing and that he was looking for savings in the next budget. But he had a familiar refrain that the county was just lacking money.